Debating Law and Religion Series

Debating Law & Religion is a monthly series aimed at creating a formal forum for invited speakers to discuss topical issues concerning law, its interaction with religion, and the role of religion in contemporary legal and socio-political systems. We do not shy away from contentious issues, and while our conversations are always respectful, we seek to encourage debate between speakers who genuinely disagree as to how we should answer the important questions of our day. Since the series began in 2011, we have conducted lunchtime discussions on such topics as the Islamic community center at Ground Zero in New York City, the legal bans on headscarves and burqas in France, the role of religion in public reason, the place of religion in ancient Roman and Hindu civilizations, and protections for hate speech directed at religious groups. We hope you will join us for our next debate!

Workshop Events

Mass movements make good revolutions but do they also make ‘good’ constitutions? In our modern rule-of-law world, constitution-making has become a battleground for the unfolding of the revolution. As the euphoria of revolution in the Middle East and North Africa transitions into the painstaking work of constitution drafting, the political debate is rife with disagreements among people with varying views about the role of Islam in government.
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In 1947, India and Pakistan embarked on separate constitutional journeys. While India adopted a constitution which it called ‘secular’, Islam was given a central role in Pakistan. Nevertheless, Indian state continued to be interventionist in religious affairs. Religious groups have continued to be governed by separate religious family laws, and ‘secular’ courts are asked upon to adjudicate on these religious laws. It has partly succeeded to reform Hindu law, but failed to touch minority Muslim law. Controversially, religion and politics are more intertwined than ever before, and in some cases courts have given this their stamp of approval. On the other hand, in Pakistan, religious and secular courts have remained separate, and codification and reform of sharia law has been undertaken.

Has the ‘secular’ Indian system succeeded to maintain an adequate separation of religion and state? Has the ‘religious’ system of Pakistan allowed for a more dynamic reform of religious law? Has the Indian model provided better protection of minority rights and preservation of the rule of law? How different or similar are the paths charted by the two countries, and are their fates diverging or converging?

Set in contemporary Iran, A SEPARATION is a story of a pending divorce, which unfolds into a series of events posing unnerving ethical as well as existential challenges for the characters. The movie is an insightful commentary on contemporary Iranian society, and uses the unfolding family drama to explore the relationship between religious and secular law, as well as ethics and formal law.

In March 2011, the Grand Chamber of the European Court of Human Rights ruled that Italian law requiring the display of crucifixes in classrooms of state schools did not violate the European Convention on Human Rights. In so doing, it overturned an earlier chamber decision that the law violated the ECHR's guarantee of religious freedom. The Grand Chamber decision was hailed by supporters as affirming Italy's history and tradition as a religious country. Detractors argued that the decision effectively eroded the right of citizens not to be coerced by the state, whether directly or indirectly, to affirm one or any religion. The two decisions reflect contrasting positions on the nature and content of religious liberty, as well as the content and requirements of secularism. These reflections are relevant not only to the specific context of Italy and Europe, but also the United States which continues to struggle with the appropriate boundaries of the constitution's non-establishment injunction and its religious history.
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The display in a Danish newspaper of cartoon depictions of Mohammed led to rioting around the world. That event shines a light on an enduring and difficult question: In a multi-religious world, what is the appropriate relationship between multicultural ideals and free speech? How should the law mediate between the demands of religious sanctity and freedom of speech? Should lawyers and legislators take ethical as well as legal considerations into account? To what extent is free speech — even offensive or potentially dangerous speech — vital to the functioning of true democracy? And if some deem speech to offend religious sensibilities, whom ought a democracy to take to represent that religion? (Watch the video)

What is American constitutionalism? Is it an orthodoxy based on the text of a document drafted in 1787, or is it defined by our constitutional practices where the text merely sustains constitutional discourse but does not define it? Should America's quasi-religious relationship to the Constitution be defined exclusively by the text of the Constitution or evolving constitutional practice? (Watch the video)

Liberal democracies of the Western world emerged from a theological universe. The common law and the American constitution as well as European civil laws and public Institutions developed within or from deeply religious societies. Given this context, even ostensibly secular laws have often been the product of conscious and unconscious theological influences or religious institutions. American separation of church and state, and even French laicite, for example, appear to have been motivated as much by theological concerns to protect religion from the state as by secular interests to protect the state from religious influences.In this debate, we ask: How should a pluralist society composed of the religious, the a-religious, and the anti-religious relate to legal systems whose roots can be traced in large part to theological influences? Do secular Western societies have anything to gain in exploring the theological pedigree of their present values? Why is the United States, formally one of the most secular of democracies, so deeply religious? Is the effort to separate church and state doomed as long as religion remains embedded in the legal and social world? In theoretical contexts, is the exclusion of religious views from the public sphere a complementary effort to excavate the law from its theological heritage? Is such an excavation possible? (Watch the video)

Law and religion are commonly conceived as dualistic antinomies in many modern Western states. The distinction between the mundane and the transcendent, religion and the law is often held up normatively as a fundamental basis for the organization of societies. These assumptions, however, have been and still are being challenged. In this debate, our speakers discuss ancient India and Rome, which seem to stand as genuine "others" to the contemporary West in their acceptance of continuity between religious and mundane life, between gods and politics. In examining the place of law and religion in ancient Rome and India, the debate focuses on the interpenetration of legal and religious discursive and normative systems along three themes: (i) pluralism; (ii) the problem of priority between law and religion (both as regards historical development and as regards the ideologies of modern reception and scholarship); and (iii) the nature of legal and religious argument and innovation. (Watch the video)

The liberal democratic state contains and confronts diversity in many forms, both liberal and non-liberal. Accommodating religious norms and practices, even those with which the liberal state disagrees, has conventionally been considered a necessary part of religious tolerance. In the face of increasing diversification of society and fear of creeping fragmentation of a common social foundation, the nature and scope of ‘tolerance’ as a political value has become an important point of debate. For many liberals, tolerating – even respecting – difference is a foundational and paradigmatic liberal value. Others claim, however, that tolerating certain non-liberal ways of life undermines the values the liberal state is obliged to protect and promote.
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In this debate, we ask: What is public reason, and to whom do its obligations apply? Must laws be justified with reasons accessible to all rational persons? Are judges subject to different, and stricter, standards of public reason as compared to legislators or voters? Is it unduly burdensome to require religious citizens to bracket part of themselves when engaging in public reasoning? Can religious perspectives be seen as providing a dimension of depth otherwise missing from democratic deliberation, or are they inherently divisive? (Watch the video)